13 ADVANCED TRIAL TIPS. Gary K. Burger BURGER LAW BurgerLaw.com

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1 13 ADVANCED TRIAL TIPS Gary K. Burger BURGER LAW BurgerLaw.com The simpler and shorter case usually wins. If you can t put your trial on quickly, figure out why. You are there for a specific purpose- either to win your client s case, win the motion or injunction, win a jury verdict, or defeat one. That is your sole purpose. Narrow and filter your evidence to that purpose. Every time you are talking, putting a document into evidence, examining a witness, or playing a video. Why are you doing that? Question the question. Any time you read or see about a long case, you can see that case is going to lose. (eg., St. Louis County Metro Link case and OJ Simpson criminal case). Under promise and over perform to the jury. Actions speak louder than words and the more you prove with your evidence and less with your voir dire, opening and close, the better. 2. A client has to be truthful about everything in a trial. If the jury gets a whiff that they are not telling the truth they won t believe your case. This is more true with plaintiffs than defendants. Make sure a Plaintiff in a personal injury case is not malingering, whining or exaggerating their symptoms. It will be discovered, affect credibility, and their testimony will be severely undermined. A jury will not award much to a liar and it fits into the greedy plaintiff stereotype. 3. At trial, splice deposition parts to help your and jump around within the depo. This does not mean you take things out of context or mislead. And take parts of the deposition to show inconsistencies or changes in stories. You just run it right down the screen and read it straight to the jury-but cite it. There is no reason if you are presenting evidence that you need to do in the page order within the deposition. Because depositions can be used for any purpose (Rule 57.07) the need to call hostile witnesses in your case in chief is ameliorated. It can be more effective and you exert more control reading portions of depositions. 4. Read important medical straight to the jury. Plaintiffs go through and highlight the parts you want to read about complaints, consistency of them, the facts and circumstances of the incident, and causation, procedures, pain complained of, pain ratings, time period when this occurred, diagnosis and prognosis, and future medical relating to the incident. This can sometimes be duplicative of the videotape depositions you have already played, but that is ok. Defendant: prior symptoms/treatment, inconsistent pain, degenerative conditions, MRI radiologist saying degenerative conditions occurred, delays in treatment, or insistences of trauma following the incident.

2 5. Use R.S.M for Voir Dire strikes for cause, which provides in part: no person who has formed or expressed an opinion concerning the matter or any material fact in the controversy in any case that may influence the judgment of such person shall be sworn as a juror in the same cause. I file a Memorandum regarding Jury Selection in most cases I try me and I will send it to you. 6. On cross examination, witnesses need to be prepared to admit clear principles in short answers. Did you see the doctor on this day and not complain about back pain? Did you send this letter? Is that your signature? Did you say such and such and so and so? Do you note the difference between complaints about your back pain on this day to the doctor? So that means you did not have back pain during this time? (No that is not true I did but I just wasn t talking about that to my primary care doctor.) So they have to admit basic obvious things- but they need to stick to their guns on their story. 7. RULES: In any case establish the legal obligations and breaches of them or the rules and violations of them. Establish what the contract or the custom and practice required and show how the defendant or plaintiff violated it. Establish the rules of conduct the defendant should have complied with and how they violated them, eg., ran a red light. Establish the plaintiff s rules and how they violated them but remember that plaintiffs have to mitigate their damages and cannot exaggerate your symptoms. Rules for Insurance companies: Rules for Hotels and Ice:

3 Rules in Auto crash: Rules in Auto crash(2):

4 Rules in trip and fall:

5 8. Get to the simple truth of every proposition you re establishing for the plaintiff or the defendant, think about it, and synthesize it. Don t overly complicate very simple ideas. 9. Ask the defendant in a tort case or in a breach of contract case what they could do differently.

6 10. Double down on preposterous positions at any time. So you didn t do anything wrong in this car crash is that correct? Yes. So you are going to drive this way when you go home from the trial/deposition today? You are always going to drive this way because that is the right way to do it and there is nothing wrong with driving like that? So you haven t looked for work really since the accident, is that fair? And so you are probably not going to continue to do that in the future? Is that right? You didn t think you needed to look where you were going when you were walking through that store on that person s property is that right? So you are not going to look where you are going at any time and you just don t have to because it is everybody else s fault is that right? Do you have to look where you re going to make sure it s s safe? 11. DOCTOR: Always talk about the money the other side makes if they testify a lot. See impeachment too.

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11 12. When deposing doctors in personal injury and medical malpractice cases always establish before you go through any of the records what they recall apart from the records. Often there is very little recollection. They don t know the level of informed consent, they don t know whether or not they did such and such, don t know anything in addition to what s in records or don t know whether or not they consulted with a partner or another doctor. Then they are boxed into the records. 13. Did the lawyer provide the doctor his opinions? Q: Dr. Rahman, my name is Gary Burger. I represent the women that you were just talking about. I am going to mark Exhibit 1 for the last four or five questions when counsel was asking you questions, you were literally looking at this document and following along as he was reading it. Is that correct? A: No. Q: You-you didn t have this out in front of you and were following along on the way he was asking the questions? Did I miss that? A: It s been in front of me, but I was actually thinking about something else.

12 Q: What were you thinking about? A: Just the other parts of the case. I actually was thinking about Dr. Gormen s record here. Q: Gornet s? A: Gornet Gornet s record here. Q: Weren t the last questions about what your opinions were weren't they exactly what is written in that documents that v just marked as Exhibit 1? A: Yes. Q: Word for word, right? A: Pretty close. Q: And that s a documents the Mr. Walsh wrote, not you; right? A: Yes. Q: All right. He wrote this document about what your opinions were; fair? A: Right. Q: All right. And when he s asking you what your opinions were, he was literally reading out of the document that he wrote? A: Yes.